AGBOOLA v. AUDU

CITATION: (2018) LPELR-44981(CA)

In the Court of AppealIn the Ilorin Judicial Division

Holden at Ilorin

ON WEDNESDAY, 11TH JULY, 2018Suit No: CA/IL/55/2017

Before Their Lordships:

MOJEED ADEKUNLE OWOADE Justice, Court of AppealHAMMA AKAWU BARKA Justice, Court of AppealBOLOUKUROMO MOSES UGO Justice, Court of Appeal

BetweenOBA ABDULAZEEZ SHOLA AGBOOLA(Substituted for Alhaji Sanni Owolabi, Suing onbehalf of Agbeku Community)

- Appellant(s)

AndBAALE AUDU(Baale of Magbon for Magbon Community) - Respondent(s)

RATIO DECIDENDI

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1. ACTION - REPRESENTATIVE CAPACITY: Who can institute a suit in a representative capacity; who can challenge therepresentative capacity of a party to sue"It is now fairly well settled that not only is the proper procedure for challenging a person's authority to represent a groupin a suit is by way of a motion on notice in limine, it is also settled that only the persons a party claims to represent, andnot his opponent, can question his authority. These are well settled by the cases of Ladejobi v. Oguntayo (2004) 18 NWLR(Pt. 904) 149 at 168-169 and S.P.D.C.N. v. Edamkue (2009) 14 NWLR (PT. 1160) 1.In Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 149 this position was stated by the apex Court (Uwaifo, JSC) at 168-169as follows:"The grievance of the Ruling House in question showing how its right, have been infringed forms the foundation of theaction. There is no basis on which the respondents canreasonably argue in this case that the facts averred by the appellants do not bear out their locus standi .... "The saidRuling House can in the circumstance, go to Court to contest the nomination. But it must be realized that the action sobrought by them does not cease to be a representative action of the Afurukugboye Ruling House. The said Ruling Housecan contest what has been done by filing a representative action to protect its corporate interest. I imply nothing aboutthe merit of such action. An action of that nature can only provoke the issue whether the appellants on record are actuallyacting on behalf of the Ruling House and with its authority as such. The way to resolve this is not to raise the issue oflocus standi of those appellants on record in Court or ask them to show how their personal interests have been violated,as has been done here by the two Courts below. There is the averment in paragraph 4 that:'The plaintiffs have brought this suit with the consent and authority of the bonafide members of the AfurukeregboyeRuling House, on behalf of themselves and for and on behalf of the said ruling house'.But the way out may be to challenge the representative capacity claimed by the plaintiffs."The law is that a person has the right to protect his family interest in or title to and can sue for himself and on behalf ofthe family in a representative capacity: see Sogunle vs. Akerele (1967) NWLR 58; NTA vs. Anigbo (1972) 5 S.C, 156;Melifonwu vs. Egbuji (1982) 9 S.C. 145; Atanda vs. Olanrewaju (1988) 4 NWLR (Pt. 89) 394. In the present case theplaintiffs have exercised that right by bringing this action. There must be proof of substantial opposition in order todeprive them of their representative capacity. This is done by motion and not by way of defence: see Russian Commercialand Industrial Bank vs. Comptour (1925) A - C. 112 at 130."In S.P.D.C.N. v. Edamkue (2009) 14 NWLR (PT. 1160) 1 @ 27 -28 the apex Court (Ogbuagu, J.S.C.) reconfirmed thisposition even more forcefully, saying:"As regards evidence of any authorization from the two families or community of the 1st and 3rd set ofplaintiff/Respondent to initiate the two suits on their behalves/behalf, I hold that the Appellant has no locus standi toobject to the said representation not being a member of those families or communities, it is settled that once theplaintiff/Plaintiffs expressed on the writ or statement of claim that the action is brought in a representative capacity asappears in the two consolidated suits, it is/was pima facie, though not conclusive evidence of authority by his/their group,family or community to sue in that capacity."It is only a member of that group, family of community, who can dispute, intervene or challenge the properrepresentation or the capacity in which the plaintiff/plaintiffs sued. It will be futile for a Defendant who is not one ofthe/those plaintiff/plaintiffs purports to represent, to challenge his/their said authority for, because if the plaintiff/plaintiffscase is dismissed, such dismissal can never affect the defendant adversely, see the case of Chief P.C Anatogu & Ors vAttorney-General, East Central State (1974) 4 ECSLR 36 (1976) 11 S.C 109."In any event, assuming but without conceding that late Owolabi even lacked standing to bring the suit as a representativeof his Agbeku community, his right to sue respondents as a member of Agbeku Community to defend and protect what heclaims as his community land cannot be questioned. That point has long settled in Sogunle vs. Akerele (1967) NWLR 58and religiously followed by a long line of cases to the effect that not just principal members of family or community butevery member of a family/community has interest in family/community land and so under a duty to protect it andconsequently standing to institute action in respect of any wrong or threat to such property. This is how it was said by theSupreme Court (Onyeama, J.S.C.) in Sogunle v. Akerele at p. 60:"There is authority for the view that a member of a family may take steps to protect family property or his interest in it, ifhe has not the authority of the family to bring the action the family would, of course, not be bound by the result, unlessfor some reason the family was estopped from denying that the action was binding."In the present case the appellants are claiming land which the respondents say belonged to their family: it would be oddif as a result of an understanding between the appellants and certain members of the family the respondents could notprotect family rights in the land because those members refused to authorize them."Some years down the line the same Supreme Court (Karibi-Whyte, J.S.C.) in Layinka v. Gegele (1993) 3 NWLR (283) 18 at530 restated this principle thus:"I think the proposition that the validity of sale of land on behalf of the family can only be by the head of the family andthe principal members, or voidable only by the principal members alone, see Ekpendu v. Erika (1959) SCNLR 186 cannotbe extended to the challenge of actions against the interest of the family. See Sogunle v. Akerele (1967) NMLR 58. ....Every member of the family has an interest in family property and is under a duty to protect such property. There istherefore a locus standi to institute an action in respect of wrong done to such a property."More recently in Sapo vs. Sunmonu (2010) ALL FWLR (Pt. 531) 1408) at 1425 (Ogbuagu, JSC) again reconfirmed the law asstated above, saying:"A head of family can take action to protect family property or defend an action in respect of family property, evenwithout the prior authority of other members of the family.So also any member of the family may take steps to protect family property or his own interest in it." (Emphasis mine).The trial judge was therefore under a duty to entertain and decide on the merits late Owolabi's action to defend hiscommunity land and enter judgment at least in his personal capacity. That is where the submission of Mr. Oji that therules of Court on representation are not rigid becomes relevant."Per UGO, J.C.A. (Pp. 15-21, Paras. B-B) - read in context

2. APPEAL - REPLY BRIEF: Nature of a reply brief"Reply brief is the response of appellant to new points raised by the respondent; it is not a platform for re-argument ofissues already argued."Per UGO, J.C.A. (P. 14, Paras. A-B) - read in context

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3. COURT - POWER OF COURT: Instances where the Court will not invoke its powers under Section 15 of the Court ofAppeal Act"I am afraid that is how far we can go in this matter given the trial Judge's ill-advised decision to rest his entire decision onhis belief of late Owolabi's lack of standing and respondent's non-existence. His Lordship ought to have heeded theexhortation of the Supreme Court to trial judge's and even this Court to decide all issues canvassed before them/us evenwhen they/we are of the view that the case can be decided on a single or few issues, so as to avoid costly retrial orders. InJeoba the trial judge despite his reasoning on the juristic personality of the original defendant still proceeded to evaluatethe evidence on its merits and made findings which enabled the Supreme Court, after disagreeing with him on his holdingon defendant's existence as a juristic person, to assume jurisdiction on the merits of the case, enter judgment for plaintiffand save parties the agony of a retrial.The trial in his case was not conducted on documents alone rather, a number of witnesses were paraded by both sidesand cross-examined extensively before the trial judge. Issues of credibility are inevitable in that case so this Court cannotbrazenly dabble into the case and give a decision one way or the other on evidence adduced by witnesses it never saw, aswas urged on us by counsel. Useful as Section 15 of the Court of Appeal Act is in appropriate cases, it is not by any meansa one-size-fits-all kind of provision.Section 15 of the Court of Appeal Act does not possess the magical power of Open Sesame employed by the forty thievesin Chandler's Ali Baba and the Forty Thieves to open the fictional treasure cave at will in that iconic Arabian story. It isnow settled that the power of an appellate Court to draw inferences of facts depends on whether findings of primary factshave, in the first place, been made by the trial Court or whether the evidence is capable of only one conclusion. Wherethe trial Court has not made any findings of fact (as in the instant case) or such findings as he made were upon aninadequate consideration of the oral evidence placed before him, or where conflicting evidence can only be resolved onthe basis of credibility of witnesses, an appellate Court, including this one, cannot reasonably be expected to makeprimary findings of fact. In that case the appropriate order is retrial: Nnorodim v. Ezeani (2001) 84 LRCN 560 (AyoolaJ.S.C., p. 572, Belgore, J.S.C. @ p.566, Iguh @ p. 567- 568). Evaluation of evidence is primarily the function of a trial Court:See Odofin v. Ayoola (1984) NSCC 711 @ 783 (Oputa J.S.C.).Put simply, this is not an appropriate case for this Court to resort to its powers under Section 15 of the Court of Appeal Act2004."Per UGO, J.C.A. (Pp. 28-31, Paras. E-A) - read in context

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4. PRACTICE AND PROCEDURE - MISNOMER: Whether the Court can suo moto make a correction in the name of partiesto a suit"I am afraid I am also in disagreement with the trial judge on his finding that the respondent who not only enteredappearance to the suit as Baale Audu but took numerous steps in the suit including even filing a defence to it, seekingand obtaining an order under the same name to amend his said defence, repeatedly appeared physically before HisLordship under that name, filed a counterclaim with that name and even insists in this appeal that the lower Court waswrong in not entering judgment for him in that counterclaim so we should proceed to set aside that decision and enterjudgment for him in his counterclaim is a non-existent person. Interestingly, the facts of this case are very much like thatof Chief Jeoba v. Owonifari (1974) NSCC 402. In that case, the claimant/appellant sued the original defendant simply byhis traditional Chieftaincy title of Oniran of Orin.The said defendant, Oniran, entered appearance to the suit and defended it in that name until his death during thependency of the proceedings and was substituted by his son. At final address stage counsel for defendant argued that thesuit as originally constituted was incompetent because the original defendant was sued as Oniran of Orin, which he saidwas a non-juristic person. That argument found favour with the trial judge who went on to strike out the action albeit aftermaking findings in favour of the plaintiff on the merits of the case. An appeal to the then Western State Court of Appeal bythe plaintiff was dismissed. But that was how far the defendant's luck ran, for on further appeal the Supreme Court notonly overturned both decisions, describing them as 'make-believe', but even went on to suo motu make an ordercorrecting the name of the original defendant from his chieftaincy title of Oniran of Orin to his given name and enteredjudgment for the plaintiff. Their Lordships in the judgment of the Court read by Fatai-Williams J.S.C. (later CJN) first said asfollows at p. 406:"We think the learned trial Judge and the Western State Court of Appeal committed the grave jurisprudential error ofstating that Chief Oniran of Orin cannot be sued because he is not a legal person."It then went on to tackle the issue this way first at p.407:"The defendant was sued in a representative capacity and his son also defended the action in that capacity throughout. Inthe fact of all these facts, we think with respect, that by referring to the deceased defendant as a non-existent person,both the learned trial judge and the Western state Court of Appeal appeared to have been indulging in a flagrant from ofmake-believe."It is manifest that the plaintiff sued the original defendant by the name he was generally known. Indeed, the record ofproceedings shows that all the witnesses called by both sides referred to him as Oniran. The only occasion when his othername was used by the defendant himself is in an affidavit he swore to in support of a motion filed by him on 16th June,1965. He described himself in the affidavit as Osanyinlusi, the Oniran of Orin. At the worst, the description of the originaldefendant by the plaintiff as the Oniran of Orin is a misnomer which could have been cured by amendment."And after going through the relevant case law on the subject, including its previous decision in Olu of Warri v. Chief SamWarri Esi (1958) 3 F.S.C. 94 where it had berated a trial judge for striking out rather than correct the clear misnomer inthe name Olu of Warri by which the Olu as plaintiff sued by his title, Their Lordships went on to say/order as follows:"It must be recalled that, in the case in hand, the objection was raised on behalf of a defendant who, on the first occasionwhen the case was mentioned in Court was present as the Oniran of Orin, a name about which his counsel complainedonly after he (the defendant) had died and his son had been substituted for him with the consent of his counsel. Moreover,this son later testified that his father the original defendant, was the Oniran of Orin. Furthermore, as we had said earlierall those who testified at the proceedings referred to the original defendant as the Oniran of Orin. It is therefore notunlikely that he was known and referred to by two names, namely "Osanyinlusi" and "Oniran of Orin" .It is our view, however, that even if he had found after hearing the belated objection raised at the close of theproceedings, that there was a misnomer, the learned trial judge, of his own motion and in the interest of justice, could andshould have amended the title of the case and the pleadings to reflect the proper name of the original defendant,particularly as he was defending the action in a representative capacity.Manifestly, the misnomer, if any has been rectified by the substitution of Osho Owonifari (the present defendant) for theOniran of Orin. Nevertheless, mainly for record purpose, we hereby order that the name "Chief Oniran of Orin" shownearlier as that of the original defendant in the title of the writ and of the pleading should be amended to read"Osanyinlusi, the Oniran of Orin". (Emphasis mine.)See also Keystone Bank Plc v. James Ejembi Okefe (2014) LPELR -22633 (CA).This Court has similar powers vested on it by Section 15 of the Court of Appeal Act 2004 and Order 11 Rule 11(1) and (2)of the Rules of the Court 2016 to effect necessary amendments in the interest of justice. See also Okeowo & Ors v.Migliore & Ors. (1979) N.S.C.C. 210 @ p. 238-239.Here, like Chief Jeoba's case, the defendant/respondent, who has not denied that he is Baale of Magbon as sued, with hisown hand has thankfully revealed his identity in paragraph 4.3, p. 5 of his brief of argument saying "The respondent'snames are ALHAJI ABDUL-RAHEEM ZUBAIR." In the light of that and in the interest of justice, it is hereby ORDERED thatthe defendant/respondent's name in the writ of summons and all other processes so far filed in the suit both in the lowerCourt and here are amended to read 'ALHAJI ABDUL-RAHEEM ZUBAIR, Baale of Magbon for Magbon Community'. Hisappellation of Baale of Magbon as endorsed on the processes, which office/title he has interestingly not denied shall beadded to his name and as representative of Magbon for which he is sued."Per UGO, J.C.A. (Pp. 23-28, Paras. C-D) - read incontext

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BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the

Leading Judgment): Quite a number of years back,

precisely 2002, Alhaji Sanni Owolabi, now deceased, in a

representative capacity on behalf of his Agbeku

Community, sued the respondent, whom he described as

Baale of Magbon, on behalf of his Magbon Community, for

a declaration that Agbeku Community are the customary

owners of the parcel of land where respondent’s Magbon

Community are farming and settled. He also sought orders

(2) restraining Magbon Community from felling economic

trees on the said land without the consent of Agbeku

community, as well as (3) an order compelling Magbon

Community to pay traditional gifts, otherwise called

Isakole, as evidence of Magbon’s tenancy to Agbeku. In the

alternative to the payment of Isakole, he sought an order

for Magbon to vacate the said land. Agbeku Community’s

case was that Magbon Community who are their tenants on

the land had been lately engaging in acts inimical to their

(Agbeku’s) ownership of the said land by indiscriminately

felling economic trees therein, destroying farmlands

belonging to Agbeku people and even claiming that the

land no longer belonged to Agbeku community.

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The respondent who was sued by the cognomen ‘Baale

Audu, and identified as Baale of Magbon’ (Baale meaning

Village Head as used in the records) and as representing

his Magbon Community, entered appearance to the suit by

that same name Baale Audu, filed a statement of defence,

sought and obtained leave of Court to amend it and even

filed a counterclaim by that name. In his defence, Magbon

Community through respondent challenged Late Owolabi’s

authority from his Community and his standing to

represent his Agbeku Community in instituting the action

against it. It founded this challenge on a visit the new Oba

(head) of Agbeku community was said to have paid Magbon

Community while the suit was pending and labelled his

action incompetent. Respondent also denied that there

wasn’t anybody called Baale Audu in Magbon Community.

As for the land in issue, it claimed it belonged to it and not

Agbeku community.

Upon the commencement of the new High Court Rules of

Kwara State in 2005 both parties filed witnesses’

statements and the case went to trial.

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Late Owolabi called two witnesses, through whom he also

tendered five documents as Exhibits 1, 2, 3, 4 and 5.

Respondent also called two witnesses and a subpoenaed

one. Through them he also tendered Exhibits 6, D1, D2 and

D3.

In his judgment of 29th November, 2016, the trial judge,

Abdulgafar, J., upheld respondent’s contention of late

Owolabi’s lack of authority as representative of his

community in instituting the suit and held it incompetent

and struck it out without even any attempt at evaluating

the evidence adduced on its merits. His Lordship also held

the counterclaim incompetent, upholding respondent’s

contention that there was nobody called Baale Audu in

Magbon Community. His Lordship had this to say in

striking out the claim:

“The law is trite that a party must demonstrate on his

pleadings his locus standi to institute the action and where

he fails, the action becomes defective and incompetent. See

Momoh v. Olotu (1970) NSCC 99. I have considered the

evidence adduced on the issue and rather than

demonstrate his locus standi vide authority to sue, what the

evidence shows is that the plaintiff lacks authority of

Agbeku Community to institute this action

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and the effect is that this action is incurably defective. See

Oloriode v. Oyebi (1984) 1 SCNLR 390.”

And on the counterclaim:

“There is the counterclaim of the defendant which to all

intents and purposes is a separate action. The case of the

defendant both in the amended statement of defence and

evidence is that the defendant is not Baale Audu and there

is no Baale Audu in Magbon.

“”The effect of this line of defence is that the counterclaim

has not been authorized by Magbon Community since the

community could not have conferred authority on a non-

existent person. The Counterclaim is also defective and the

same is struck out."

Late Owolabi, dissatisfied with that judgment, lodged this

appeal against it to this Court on seven grounds and

framed the following four issues for determination:

1. Whether the learned trial Judge was right in holding that

the appellant lacks locus standi to institute the action on

behalf of his community

2. Whether the learned trial Judge was right in not

considering the appellant’s objection to competence of the

respondent’s evidence on record.

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3. Whether the appellant is not entitled to his claims before

the trial Court, based on the evidence on record.

4. Whether the findings of the trial Court that the

defendant is not an existing person is borne out of the

record.

Respondent distilled four similar issues as follows:

1. Whether from a careful and painstaking examination of

this case as presented at the trial Court, the claimant does

not lack the requisite locus standi to commence this suit.

2. Whether in view of the unassailability of the evidence

adduced by the respondent on record, the trial Court was

not right in refusing to uphold the objection of the

appellant.

3. Whether on the merits, the appellant is entitled to his

claims at the trial Court.

4. Whether the lower Court was not right in holding that

the defendant was not an existing person, but wrongly

struck out the counter-claim.

On issue 1, Mr. Kizito Oji for appellant relying on Bakare

& Ors v Ajose – Adeogun & 3 Ors (2014) 1 SC (PT. 11)

2 @ 33 – 34 argued that the only relevant document to be

considered in deciding locus standi of a claimant is the

statement of claim.

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Counsel then referred us to paragraph 1 of the amended

statement of claim where it was averred by Owolabi that:

"The Plaintiff is the representative of Agbeku community in

the Ifelodun Local Government Area of Kwara State and he

has the authority of Agbeku community to institute this Suit

in a representative capacity on behalf of the Agbeku

community."

He argued that assuming, without conceding, that Owolabi

did not even aver that the matter was on a representative

capacity the trial Court ought to have considered the line of

the evidence on record in pronouncing on the merits of the

case one way or the other more so as it is crystal clear, he

submitted that the evidence of appellant’s witnesses on the

record shows that the suit was brought in a representative

capacity.

Mr. Oji stressed that the trial judge was also wrong when

he dismissed appellant’s argument against the procedure

adopted by respondent in questioning his locus standi.

Counsel submitted that contrary to His Lordship’s position,

the records do not bear out his assertion that respondent

on 27/11/2012 sought to raise the issue in limine and it was

he Mr. Oji who suggested

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that all applications including that one be deferred to final

address. There is nothing on the records to show that he

made such a suggestion, if anything, he submitted, the

records rather reveal that the case was actually adjourned

from 13th October, 2012 to 18th December, 2012, thereby

skipping the said 27/11/2012.

Mr. Oji also attacked the finding of the trial judge of the

visit of the new Oba of Agbeku to Magbon and the offering

of gifts he made, which His Lordship relied on for his

finding that it was an admission that Late Owolabi lacked

authority of his community to institute this action. Counsel

submitted that there was no such admission by Owolabi

(P.W.2) during cross examination. Counsel added that even

if there was such admission, which he said is not conceded,

it is not sufficient basis for concluding on such a vital issue

as locus standi in a representative capacity. The purported

visit by the Oba of Agbeku to Magbon Community is a

traditional practice of any new Oba to visit his

neighbouring communities, which has nothing to do with

the issue of locus standi at hand, he added. Counsel relying

on Sapo V Sunmonu (2010) 11 NWLR (PT. 1205) 374

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submitted that the law is settled that while a head of family

can take action to protect without prior consent of the

other members of the family, any member of a family can

take steps to protect or defend family property.

Relying on S.P.D.C.N. Ltd v. Edamkue (2009) 14 NWLR

(PT. 1160) 1 @ 27 – 28, Mr. Oji next submitted that it is

not the province of a defendant to challenge the authority

of a claimant suing in representative capacity as

respondent did in this case. Relying on Anatogu v.

Attorney-General of East Central State (1974) 4

ECSLR 36; (1976) 11 S.C. 109 counsel submitted that

the rule governing representative action is very permissive

and not rigid contrary to the trial judge’s attitude to it.

Learned counsel finally urged us to resolve this issue in

favour of appellant.

On issue 2, Mr. Oji argued that the Court is duty-bound to

resolve all issues canvassed by parties so Abdulgafar J., was

bound to resolve appellant’s objection to the evidence of

respondent’s witnesses’ which were based on witness

depositions that were filed out of time and without order of

Court allowing them to do so.

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His Lordship’s failure rule one way or the other on it not

only amounts to denial of fair hearing to appellant but also

resulted in grave miscarriage of justice for which we should

intervene, he submitted.

On issue 3, counsel argued that appellant by the evidence

he adduced proved his claims and the trial judge was bound

to evaluate it and enter judgment for him rather than rely

on Late Owolabi’s said lack of standing to strike out the

suit. In the face of that, counsel argued, this Court is vested

with necessary powers by Section 15 of the Court of Appeal

Act 2004 to assume jurisdiction and proceed to evaluate the

evidence and enter judgment for appellant.

On issue 4, counsel submitted that the trial Court’s finding

that respondent was not an existing person is not borne out

by the records. He said when the case was filed and served

on the defendant he did not only brief a lawyer to appear

for him but filed Memorandum of Appearance and

Statement of Defence, amended his statement of defence

and also added a Counter Claim, all in the name of Baale

Audu, Baale of Magbon. Counsel also drew our attention to

the fact that the same respondent also appeared

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personally in the case and was so recorded by the Court on

19/07/2004, 01/12/2004, 23/02/2005, 13/04/2005,

27/06/2005, 26/09/2005, 07/11/2005, 07/17/2005,

03/04/2006 and 14/06/2006. He also further referred us to

the evidence of DW1 under cross-examination to the effect

that the entire Magbon Community is aware of the case.

Counsel wondered how such a person could suddenly

become non-existent and submitted that parties cannot

approbate and reprobate. He referred us to Ajayi v. Total

Nig. Plc (2013) 15 NWLR (PT. 1378) 423 @ 540 and

urged us to resolve this issue too in favour of appellant.

Mr. Adeola Omotunde for respondent supported the lower

Court ’s holding that late Owolabi was not the

representative of Agbeku Community and did not have its

authority to institute this action on its behalf. Counsel said

the new head of Agbeku Community visited Magbon after

the filing of case and dissociated himself and Agbeku

Community from it.

Counsel submitted that even the name Baale Audu by

which appellant sued respondent only exists in the

imagination of appellant. The respondent’s names, counsel

then went to state in paragraph 4.3 of p. 5 of

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appellant’s brief of argument, are ALHAJI ABDUL-

RAHEEM ZUBAIR. Nobody in Magbon he said bears the

name Baale Audu. The Court has no jurisdiction to

entertain a suit in the name of a non-existing person; that

when a case is brought in such a name the Court is bound

to dismiss or strike it out, for which counsel cited Obike

Int’l Ltd v. Ayi Teletronics Ltd (2005) 15 NWLT (PT.

948) 362 @ 372 and Agbonmagbe Bank Ltd v. General

Manager G.B. Ollivant (1961) ALL NLR 116.

Relying on Ilori v. Benson (2000) 4 FWLR (PT. 26)

1846 @ 1858 D-E and Oloriode & Ors Vs. Oyebi (1984)

5 S.C. Mr. Omotunde next submitted that even the interest

claimed by late Owolabi in the land is not peculiar to him

but what he only shares with his community and such

cannot clothe him with a locus standi. He submitted that

once it is found that a claimant lacks standing there is no

need to consider whether he has a genuine case on the

merits, for which he cited Re: Adetona (1994) 3 NWLR

(Pt. 333) 482 @ 488. Where a claimant lacks standing, he

continued, no cause of action can be disclosed and he Court

will strike out the pleading and dismiss the case, he said

citing

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Ojukwu v. Ojukwu (2002) 11 NWLR (PT. 677) 65. The

law, counsel said, imposes a duty on the claimant not to

just casually say he is representing a group but state how

he acquired the interest or how such interest has arisen in

the subject matter of this action. Counsel cited Owodunni

v. Registered Trustees of Celestial Church of Christ

(2000) 10 NWLR (Pt. 675) 31. 315. He submitted that

late Owolabi failed to do that so his action was doomed to

fail. Counsel branded the cases cited by appellant

inapplicable and asked us to resolve this issue against him.

On Issue 2, Mr. Omotunde argued that the Rules of lower

Court were not breached in any way by respondent

regarding his witness statements as he had earlier on

applied by a motion dated 12/06/2013 obtained leave to file

list of witnesses, statement on oath of defendant’s witness

and copies of documents to be relied upon at the trial. That

application was moved and granted on 16/07/2013 without

objection. There is no appeal against that ruling, he

observed, and urged us to resolve this issue against

appellant.

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On issue 3, learned counsel said it is not true that appellant

adduced cogent and sufficient evidence in proof of his case.

Counsel submitted that the only feeble evidence adduced

by appellant even crumbled under cross-examination. On

the other hand, he went on, respondent proved his

counterclaim and same ought to have been granted by the

lower Court.

On issue 4, relating to the existence of the respondent as a

juristic person, Mr. Omotunde referred us to paragraph 4

of respondent’s statement of defence where he averred that

the defendant avers that he is not the person being sued,

he does not bear the name Baale Audu and nobody bears

that name in Magbon. Counsel said that averment was not

controverted by the claimant. Counsel argued, too, that

respondent upon service of processes only put up

appearance out of respect and to define his position.

Counsel concluded argument on issue 4 by submitting that

the judgment of the lower Court dismissing respondent’s

counterclaim was "faulty and unsustainable and ought to be

set aside.” This last prayer, I must pause to confess, is a big

ask given that respondent has not cross-appealed against

the said ‘faulty and unsustainable’ judgment.

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Appellant filed a Reply brief but only used it to re-argue

and further elaborate on issues like parties being bound by

the records and not allowed to approbate and reprobate, all

of which he argued in his main brief of argument. Reply

brief is the response of appellant to new points raised by

the respondent; it is not a platform for re-argument of

issues already argued.

RESOLUTION OF ISSUES

On issue 1 (of whether the learned trial judge was right on

his decision that original plaintiff/appellant Alhaji Sanni

Owolabi lacked locus standi to institute this action on

behalf of his Agbeku community) I am unable to agree with

the trial Judge on his decision that despite the clear

averment of Alhaji Owolabi in paragraph 1 of his statement

of claim that he is authorized by his Agbeku Community to

institute this action against the respondent and nobody

came from his community to dispute his authority,

defendants/respondents who are not among those he

purports to represent can challenge and that they

successfully did so. I am also unable to agree with His

Lordship that late Owolabi was not authorized by his

community simply because he did not present to the

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Court a written authorization by his Agbeku Community. In

paragraph 1 of his statement of claim Mr. Owolabi (now

deceased) averred as follows:

The claimant is the representative of Agbeku Community in

Ifelodun Local Government Area of Kwara State and has

the authority of Agbeku community to institute this suit in a

representative capacity on behalf of Agbeku Community.

It is now fairly well settled that not only is the proper

procedure for challenging a person’s authority to represent

a group in a suit is by way of a motion on notice in limine, it

is also settled that only the persons a party claims to

represent, and not his opponent, can question his authority.

These are well settled by the cases of Ladejobi v.

Oguntayo (2004) 18 NWLR (Pt. 904) 149 at 168-169

and S.P.D.C.N. v. Edamkue (2009) 14 NWLR (PT.

1160) 1.

In Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904)

149 this position was stated by the apex Court (Uwaifo,

JSC) at 168-169 as follows:

“The grievance of the Ruling House in question showing

how its right, have been infringed forms the foundation of

the action. There is no basis on which the respondents can

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reasonably argue in this case that the facts averred by the

appellants do not bear out their locus standi …. “The said

Ruling House can in the circumstance, go to Court to

contest the nomination. But it must be realized that the

action so brought by them does not cease to be a

representative action of the Afurukugboye Ruling House.

The said Ruling House can contest what has been

done by filing a representative action to protect its

corporate interest. I imply nothing about the merit of

such action. An action of that nature can only provoke the

issue whether the appellants on record are actually acting

on behalf of the Ruling House and with its authority as

such. The way to resolve this is not to raise the issue

of locus standi of those appellants on record in Court

or ask them to show how their personal interests have

been violated, as has been done here by the two

Courts below. There is the averment in paragraph 4 that:

‘The plaintiffs have brought this suit with the consent and

authority of the bonafide members of the Afurukeregboye

Ruling House, on behalf of themselves and for and on

behalf of the said ruling house’.

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But the way out may be to challenge the representative

capacity claimed by the plaintiffs.

“The law is that a person has the right to protect his

family interest in or title to and can sue for himself

and on behalf of the family in a representative

capacity: see Sogunle vs. Akerele (1967) NWLR 58;

NTA vs. Anigbo (1972) 5 S.C, 156; Melifonwu vs.

Egbuji (1982) 9 S.C. 145; Atanda vs. Olanrewaju

(1988) 4 NWLR (Pt. 89) 394. In the present case the

plaintiffs have exercised that right by bringing this

action. There must be proof of substantial opposition

in order to deprive them of their representative

capacity. This is done by motion and not by way of

defence: see Russian Commercial and Industrial Bank

vs. Comptour (1925) A – C. 112 at 130."

In S.P.D.C.N. v. Edamkue (2009) 14 NWLR (PT. 1160)

1 @ 27 -28 the apex Court (Ogbuagu, J.S.C.)

reconfirmed this position even more forcefully, saying:

“As regards evidence of any authorization from the two

families or community of the 1st and 3rd set of

plaintiff/Respondent to initiate the two suits on their

behalves/behalf, I hold that the Appellant has no locus

standi to object to the said representation not being

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a member of those families or communities, it is

settled that once the plaintiff/Plaintiffs expressed on

the writ or statement of claim that the action is

brought in a representative capacity as appears in the

two consolidated suits, it is/was prima facie, though

not conclusive evidence of authority by his/their group,

family or community to sue in that capacity.

“It is only a member of that group, family of

community, who can dispute, intervene or challenge

the proper representation or the capacity in which the

plaintiff/plaintiffs sued. It will be futile for a

D e f e n d a n t w h o i s n o t o n e o f t h e / t h o s e

plaintiff/plaintiffs purports to represent, to challenge

his/their said authority for , because i f the

plaintiff/plaintiffs case is dismissed, such dismissal can

never affect the defendant adversely, see the case of Chief

P.C Anatogu & Ors v Attorney-General, East Central

State (1974) 4 ECSLR 36 (1976) 11 S.C 109.”

In any event, assuming but without conceding that late

Owolabi even lacked standing to bring the suit as a

representative of his Agbeku community, his right to sue

respondents as a member of Agbeku Community to defend

and protect what he

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claims as his community land cannot be questioned. That

point has long settled in Sogunle vs. Akerele (1967)

NWLR 58 and religiously followed by a long line of cases

to the effect that not just principal members of family or

community but every member of a family/community has

interest in family/community land and so under a duty to

protect it and consequently standing to institute action in

respect of any wrong or threat to such property. This is

how it was said by the Supreme Court (Onyeama, J.S.C.) in

Sogunle v. Akerele at p. 60:

“There is authority for the view that a member of a family

may take steps to protect family property or his interest in

it, if he has not the authority of the family to bring the

action the family would, of course, not be bound by the

result, unless for some reason the family was estopped

from denying that the action was binding.

“In the present case the appellants are claiming land which

the respondents say belonged to their family: it would be

odd if as a result of an understanding between the

appellants and certain members of the family the

respondents could not protect family rights in the

land because those members refused to authorize

them.”

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Some years down the line the same Supreme Court (Karibi-

Whyte, J.S.C.) in Layinka v. Gegele (1993) 3 NWLR

(283) 18 at 530 restated this principle thus:

“I think the proposition that the validity of sale of land on

behalf of the family can only be by the head of the family

and the principal members, or voidable only by the

principal members alone, see Ekpendu v. Erika (1959)

SCNLR 186 cannot be extended to the challenge of actions

against the interest of the family. See Sogunle v. Akerele

(1967) NMLR 58. …. Every member of the family has an

interest in family property and is under a duty to protect

such property. There is therefore a locus standi to

institute an action in respect of wrong done to such a

property.”

More recently in Sapo vs. Sunmonu(2010) ALL FWLR

(Pt. 531) 1408) at 1425 (Ogbuagu, JSC) again

reconfirmed the law as stated above, saying:

“A head of family can take action to protect family property

or defend an action in respect of family property, even

without the prior authority of other members of the family.

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So also any member of the family may take steps to

protect family property or his own interest in it.”

(Emphasis mine).

The trial judge was therefore under a duty to entertain and

decide on the merits late Owolabi’s action to defend his

community land and enter judgment at least in his personal

capacity. That is where the submission of Mr. Oji that the

rules of Court on representation are not rigid becomes

relevant.

Let me also reconfirm here that the visit of the Oba of

Agbeku to the respondent’s Magbon community with gifts,

which fact the trial judge laid so much premium for his

decision that late Owolabi as representative plaintiff was

not authorized by his Agbeku community is also neither

here nor there. In fact that finding was is a misdirection in

so far as the said unnamed Oba was not even called and it

was never said by even any of respondent’s witnesses that

the Oba denied the late Owolabi’s authority to institute

action on behalf of Agbeku community.

In the light of all the foregoing, especially the clear position

of the law on the subject, I am in no doubt that the lower

Court was in error in its decision that late Owolabi was not

authorized by his community to institute this suit.

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Interestingly too, following the demise of late Owolabi, the

reigning Oba of Agbeku Community who is the present

appellant on record applied by motion on notice to

substitute and was granted leave by this Court, without

opposition from the defendant/respondent, to substitute

him in the appeal. In paragraphs 1, 2 and 5 of his affidavit

sworn on 27/03/2018 in support of his motion the Oba of

Agbeku confirmed the authority of his Agbeku community

to late Owolabi to institute the action when he said as

follows:

1. That I am the Present Oba of Agbeku community, as a

result of which I am very conversant with the facts I herein

depose to.

2. That I know as a fact that Alhaji Sanni Owolabi that has

been representing the Community since 2002 the suit was

instituted died on 1st January, 2018.

5. That after meeting with the Council of Chiefs it was

agreed that I am to substitute the deceased, Late Sanni

Owolabi who was representing the community because of

his age and knowledge of our custom and tradition since

the suit was instituted.

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The defendant/respondent did not challenge these facts,

which means he accepted them. He did not also oppose the

application.

In the result, I resolve issue 1 in favour of appellant.

For reasons that shall soon become apparent, I shall skip

issues 2 and 3 and proceed to issue 4 of both parties.

Issue 4:

I am afraid I am also in disagreement with the trial judge

on his finding that the respondent who not only entered

appearance to the suit as Baale Audu but took numerous

steps in the suit including even filing a defence to it,

seeking and obtaining an order under the same name to

amend his said defence, repeatedly appeared physically

before His Lordship under that name, filed a counterclaim

with that name and even insists in this appeal that the

lower Court was wrong in not entering judgment for him in

that counterclaim so we should proceed to set aside that

decision and enter judgment for him in his counterclaim is

a non-existent person. Interestingly, the facts of this case

are very much like that of Chief Jeoba v. Owonifari

(1974) NSCC 402. In that case, the claimant/appellant

sued the original defendant simply by his traditional

Chieftaincy title of Oniran of Orin.

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The said defendant, Oniran, entered appearance to the suit

and defended it in that name until his death during the

pendency of the proceedings and was substituted by his

son. At final address stage counsel for defendant argued

that the suit as originally constituted was incompetent

because the original defendant was sued as Oniran of Orin,

which he said was a non-juristic person. That argument

found favour with the trial judge who went on to strike out

the action albeit after making findings in favour of the

plaintiff on the merits of the case. An appeal to the then

Western State Court of Appeal by the plaintiff was

dismissed. But that was how far the defendant’s luck ran,

for on further appeal the Supreme Court not only

overturned both decisions, describing them as ‘make-

believe’, but even went on to suo motu make an order

correcting the name of the original defendant from his

chieftaincy title of Oniran of Orin to his given name and

entered judgment for the plaintiff. Their Lordships in the

judgment of the Court read by Fatai-Williams J.S.C. (later

CJN) first said as follows at p. 406:

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“We think the learned trial Judge and the Western State

Court of Appeal committed the grave jurisprudential error

of stating that Chief Oniran of Orin cannot be sued because

he is not a legal person.”

It then went on to tackle the issue this way first at p.407:

“The defendant was sued in a representative capacity and

his son also defended the action in that capacity

throughout. In the fact of all these facts, we think with

respect, that by referring to the deceased defendant as a

non-existent person, both the learned trial judge and the

Western state Court of Appeal appeared to have been

indulging in a flagrant from of make-believe.

“It is manifest that the plaintiff sued the original defendant

by the name he was generally known. Indeed, the record of

proceedings shows that all the witnesses called by both

sides referred to him as Oniran. The only occasion when his

other name was used by the defendant himself is in an

affidavit he swore to in support of a motion filed by him on

16th June, 1965. He described himself in the affidavit as

Osanyinlusi, the Oniran of Orin. At the worst, the

description of the original defendant by the plaintiff as the

Oniran of Orin is a misnomer which could have been cured

by amendment.”

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And after going through the relevant case law on the

subject, including its previous decision in Olu of Warri v.

Chief Sam Warri Esi (1958) 3 F.S.C. 94 where it had

berated a trial judge for striking out rather than correct the

clear misnomer in the name Olu of Warri by which the Olu

as plaintiff sued by his title, Their Lordships went on to

say/order as follows:

“It must be recalled that, in the case in hand, the objection

was raised on behalf of a defendant who, on the first

occasion when the case was mentioned in Court was

present as the Oniran of Orin, a name about which his

counsel complained only after he (the defendant) had died

and his son had been substituted for him with the consent

of his counsel. Moreover, this son later testified that his

father the original defendant, was the Oniran of Orin.

Furthermore, as we had said earlier all those who testified

at the proceedings referred to the original defendant as the

Oniran of Orin. It is therefore not unlikely that he was

known and referred to by two names, namely “Osanyinlusi”

and “Oniran of Orin” .

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It is our view, however, that even if he had found after

hearing the belated objection raised at the close of the

proceedings, that there was a misnomer, the learned trial

judge, of his own motion and in the interest of justice, could

and should have amended the title of the case and the

pleadings to reflect the proper name of the original

defendant, particularly as he was defending the action

in a representative capacity.

Manifestly, the misnomer, if any has been rectified by the

substitution of Osho Owonifari (the present defendant) for

the Oniran of Orin. Nevertheless, mainly for record

purpose, we hereby order that the name “Chief Oniran of

Orin” shown earlier as that of the original defendant in the

title of the writ and of the pleading should be amended to

read “Osanyinlusi, the Oniran of Orin”. (Emphasis mine.)

See also Keystone Bank Plc v. James Ejembi Okefe

(2014) LPELR -22633 (CA).

This Court has similar powers vested on it bySection 15 of

the Court of Appeal Act 2004 and Order 11 Rule 11(1) and

(2) of the Rules of the Court 2016 to effect necessary

amendments in the interest of justice. See also Okeowo &

Ors v. Migliore & Ors. (1979) N.S.C.C. 210 @ p.

238-239.

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Here, like Chief Jeoba’s case, the defendant/respondent,

who has not denied that he is Baale of Magbon as sued,

with his own hand has thankfully revealed his identity in

paragraph 4.3, p. 5 of his brief of argument saying “The

respondent’s names are ALHAJI ABDUL-RAHEEM

ZUBAIR.” In the light of that and in the interest of justice, it

is hereby ORDERED that the defendant/respondent’s name

in the writ of summons and all other processes so far filed

in the suit both in the lower Court and here are amended to

read ‘ALHAJI ABDUL-RAHEEM ZUBAIR, Baale of Magbon

for Magbon Community’. His appellation of Baale of

Magbon as endorsed on the processes, which office/title he

has interestingly not denied shall be added to his name and

as representative of Magbon for which he is sued.

I am afraid that is how far we can go in this matter given

the trial Judge’s ill-advised decision to rest his entire

decision on his belief of late Owolabi’s lack of standing and

respondent’s non-existence. His Lordship ought to have

heeded the exhortation of the Supreme Court to trial

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judge’s and even this Court to decide all issues canvassed

before them/us even when they/we are of the view that the

case can be decided on a single or few issues, so as to avoid

costly retrial orders. In Jeoba the trial judge despite his

reasoning on the juristic personality of the original

defendant still proceeded to evaluate the evidence on its

merits and made findings which enabled the Supreme

Court, after disagreeing with him on his holding on

defendant’s existence as a juristic person, to assume

jurisdiction on the merits of the case, enter judgment for

plaintiff and save parties the agony of a retrial.

The trial in his case was not conducted on documents

alone rather, a number of witnesses were paraded by both

sides and cross-examined extensively before the trial judge.

Issues of credibility are inevitable in that case so this Court

cannot brazenly dabble into the case and give a decision

one way or the other on evidence adduced by witnesses it

never saw, as was urged on us by counsel. Useful as

Section 15 of the Court of Appeal Act is in appropriate

cases, it is not by any means a one-size-fits-all kind of

provision.

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Section 15 of the Court of Appeal Act does not possess the

magical power of Open Sesame employed by the forty

thieves in Chandler’s Ali Baba and the Forty Thieves to

open the fictional treasure cave at will in that iconic

Arabian story. It is now settled that the power of an

appellate Court to draw inferences of facts depends on

whether findings of primary facts have, in the first place,

been made by the trial Court or whether the evidence is

capable of only one conclusion. Where the trial Court has

not made any findings of fact (as in the instant case) or

such findings as he made were upon an inadequate

consideration of the oral evidence placed before him, or

where conflicting evidence can only be resolved on the

basis of credibility of witnesses, an appellate Court,

including this one, cannot reasonably be expected to make

primary findings of fact. In that case the appropriate order

is retrial: Nnorodim v. Ezeani (2001) 84 LRCN 560

(Ayoola J.S.C., p. 572, Belgore, J.S.C. @ p.566, Iguh @

p. 567- 568). Evaluation of evidence is primarily the

function of a trial Court: See Odofin v. Ayoola (1984)

NSCC 711 @ 783 (Oputa J.S.C.).

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Put simply, this is not an appropriate case for this Court to

resort to its powers under Section 15 of the Court of Appeal

Act 2004.

On that note, the appeal is allowed, the judgment of the

lower Court set aside and the case ordered returned to the

High Court of Kwara State for trial on its merit by another

judge to be assigned by the Chief Judge of the State.

Having regard to the age of the case (a 2002 case), it is

also ordered that the retrial be given accelerated hearing in

the strictest sense of the word.

Costs of this appeal is assessed at ₦100, 000 in favour of

the appellant.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the

opportunity of reading the draft of the lead Judgment

delivered by my learned brother, BOLOUKUROMO MOSES

UGO, JCA. I agree with the reasoning and conclusions

therein. I also allow the Appeal and abide with Order of

retrial of the case. I also abide with the Order as to Costs.

HAMMA AKAWU BARKA, J.C.A.: The judgment just

delivered by my learned brother BOLOUKUROMO MOSES

UGO JCA, was made available to me in draft. Having also

studied the record of appeal, I wholly agree with

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the reasoning and conclusion in the lead judgment to the

inevitable conclusion that this appeal be allowed. I also

agree with the resultant orders made in the lead judgment

including the order as to costs.

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Appearances:

Kizito Oji Esq. with him, Abdulazeez A. DaibuEsq. and A. Onifade Esq. For Appellant(s)

Isreal Eso, Esq. For Respondent(s)

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